HomeMy WebLinkAboutL 13216 P 942 f l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l f
I I I I I I l l l l l l l l l
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT Recorded: 09/06/2023
Number of Pages : 26 At: 09 : 15 : 49 AM
Receipt Number : 23-0113542
TRANSFER TAX NUMBER: 23-04090 LIBER: D00013216
PAGE : 942
District: Section: Block: Lot:
2000 083 .00 02 . 00 017 . 001
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $0 . 00
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $130 . 00 NO Handling $20 .00 NO
COE $5 . 00 NO NYS SRCHG $15 .00 NO
TP-584 $5 . 00 NO Notation $0 . 00 NO
Cert.Copies $0 . 00 NO RPT $200 . 00 NO
Transfer tax $0 . 00 NO Comm.Pres $0 . 00 NO
Fees Paid $375 . 00
TRANSFER TAX NUMBER: 23-04090
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Vincent Puleo
County Clerk, Suffolk County
I❑2] Submit by E-mail Print Form
RECORDED
Number of pages 2023 Sep 06 09.15"49 RM
Vincent Puleo
CLERK OF
This document will be public SUFFOLK COUNT,'
record.Please remove all L D00013216
P 942
Social Security Numbers DTN 2.3-04090
prior to recording.
Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps
3 FEES
Page/Filing Fee
Mortgage Amt.
1.Basic Tax
Handling 20. 00
2. Additional Tax
TP-584 Sub Total
Notation � �
Spec./Assit.
or
EA-52 17(County) Sub Total Spec./Add.
EA-5217(State) TOT.MTG.TAX
R.P.T.S.A. � Dual Town Dual County
Held for Appointment
Comm.of Ed. 5. 00 (t%R17w Transfer Tax _n
Affidavit _
Mansion Tax
The property covered by this mortgage is
Certified Copy or will be improved by a one or two
NYS Surcharge 15. 00 family dwelling only.
Sub Total YES or NO
Other _
Grand Total If NO, see appropriate tax clause on
page# of this ins ume t.
4 1 Dist. 1000 5137244 1000 08300 0200 017001 5 Community Preservation FQ
Real Property 111111111111111Consideration Amount$ 0
Tax Service P �
Agency R DTY A CPF Tax Due $
Verification 07-AUG-2
_ — — Improved
6 Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD&RETURN TO: Vacant Land
TD �V
5/•/39� 2�1�
C�I� IU�C1� /// TD
1q111q: L////Gll Ive�11��wyh TO
7 Title Company Information
11 Co.Name IMIAlfilk
Title# 11
8 Suffolk County Recording & Endorsement Page
This page forms part of the attached Grant of Development Rights Easement made
by. (SPECIFY TYPE OF INSTRUMENT)
E&C Property Holding 11,Inc. _ The premises herein is situated in
SUFFOLK COUNTY,NEW YORK.
TO In the TOWN of Southold
Town of Southold In the VILLAGE / L
orHAMLETof L�y C/TL'hd
BOXES b THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR KLING.
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GRANT OF DEVELOPMENT RIGHTS EASEMENT AS of
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made 0 the
24th day of July, 2023 at Southold, New York. The parties are
E & C PROPERTY HOLDINGS II, INC. with offices at 158-11 Harry Van
Arsdale Jr. Ave., Flushing, NY 11365 (herein called "Grantor"), and the
TOWN OF SOUTHOLD, a municipal corporation, having its principal office at
53095 Main Road, P.O. Box 1179, Southold, New York 11971-0959 (herein
called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real property
located in the Town of Southold, Suffolk County, New York, identified as part
of SCTM #1000-83-2-17.1, more fully described in SCHEDULE "A" attached
hereto and made a part hereof and hereinafter referred to as the "Property";
and
WHEREAS, the property is located within a split zone with a majority of
the total acreage, 26.19± acres, in the Agricultural-Conservation (A-C)
Zoning District and approximately 2.55± acres situated on the northerly side
of the parcel being in the Resort Residential (RR) Zoning District; and
WHEREAS, the Property contains soils classified as Class I and Class II
worthy of conservation as identified by the United States Department of
Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New
York; and
WHEREAS, the Property is part of the New York State Agricultural
District #1, and the Grantor wishes to continue using the Property for
agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used for agriculture; and
WHEREAS, it is the policy of the Town of Southold (the "Town"), as
articulated in the Southold Town Comprehensive Plan dated February, 2020
as adopted by the Town Board, Town of Southold, and §272-a of the New
York State Town Law ("Town Law") to protect environmentally sensitive
areas, preserve prime agricultural soils, to protect the scenic, open space
character of the Town and to protect the Town's agricultural economy; and
1
1/lAstewart
TITLE Title Number: 71239749
SCHEDULE A— DESCRIPTION
[[AMENDED 712012023]]
DEVELOPMENT RIGHTS EASEMENT TO BE INSURED:
ALL that certain plot, piece or parcel of land, situate, lying and being at Cutchogue, Town of Southold,
County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the northwesterly side of Oregon Road, distant 477.04 feet northeasterly from
the corner formed by the intersection of the northeasterly side of Duck Pond Road and the northwesterly
side of Oregon Road; and THENCE along land now or formerly of Robert Carita and land now or formerly
of the Town of Southold, North 40 degrees 27 minutes 25 seconds West 527.79 feet and from said point of
beginning;
RUNNING THENCE along lands as shown on "Map of Woodbine Manor," filed December 15, 1986 as
Map No. 8239, the northeasterly sides of Thar Lane and Olivia Lane, along land now or formerly of
Jacqueline P. Liden, and along land now or formerly of Thomas Mangiamele, the following two (2) courses
and distances:
1. North 40 degrees 27 minutes 25 seconds West 972.06 feet; and
2. North 40 degrees 25 minutes 00 seconds West 1,441.23 feet to the southeasterly side of Duck Pond
Road,
THENCE along the southeasterly side of Duck Pond Road, North 31 degrees 27 minutes 30 seconds East
21.05 feet to land now or formerly of E&C Property Holding II, Inc.;
THENCE along said land, the following two (2) courses and distances:
1. South 40 degrees 25 minutes 00 seconds East 58.97 feet; and
2. South 88 degrees 34 minutes 00 seconds East 569.33 feet to land now or formerly of Richard J.
McBride;
THENCE along said land, South 41 degrees 43 minutes 00 seconds East 2,510.86 feet to the
northwesterly side of Oregon Road;
THENCE along the northwesterly side of Oregon Road, South 49 degrees 44 minutes 40 seconds West
100.00 feet to land now or formerly of June Behr;
FOR CONVEYANCING ONLY:TOGETHER with all right,title and interest of the party of the first part,of,in and to any streets and
roads abutting the above described premises to the center lines thereof.
Schedule A Description
Alkstewart
TITLE Title Number: 71239749
THENCE along said land, the following two(2) courses and distances:
1. North 41 degrees 45 minutes 20 seconds West 150.00 feet; and
2. South 49 degrees 44 minutes 40 seconds West 150.00 feet;
THENCE North 41 degrees 45 minutes 20 seconds West, 377.97 feet;
THENCE South 49 degrees 44 minutes 40 seconds West, 238.04 feet to land now or formerly of the Town
of Southold and the point or place of BEGINNING.
FOR CONVEYANCING ONLY:TOGETHER with all right,title and interest of the party of the first part,of,in and to any streets and
roads abutting the above described premises to the center lines thereof.
- Schedule A Description
WHEREAS, the Property in its present condition has substantial and
significant value as an agricultural resource since it has not been subject to
any substantial development; and
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor and
Grantee have, in common, the purpose and objective of protecting and
conserving the present state and inherent, tangible and intangible values of
the Property as an agricultural resource; and
WHEREAS, Grantee has determined it to be desirable and beneficial
and has requested Grantor, for itself and its successors and assigns, to grant
a Development Rights Easement to Grantee in order to restrict the further
development of the Property while permitting compatible uses thereof;
NOW THEREFORE, in consideration of TWO MILLION SIXTY TWO
THOUSAND FOUR HUNDRED 00/100 DOLLARS ($2,062,400.00) and other
good and valuable consideration paid to the Grantor, the receipt of which is
hereby acknowledged, the Grantor does hereby grant, transfer, bargain, sell
and convey to the Grantee a Development Rights Easement, which shall be
binding upon and shall restrict the premises shown and designated as the
Property herein, more particularly bounded and described on Schedule "A"
annexed hereto and made a part of this instrument.
TO HAVE AND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with
respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the use and benefit of the Grantor, its legal
representatives, successors and assigns, the fee title to the property, and
the exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use
restrictions hereinafter set forth, which shall constitute and shall be
servitudes upon and with respect to the Property.
The Grantor, for itself, and for and on behalf of its legal
representatives, successors and assigns, hereby covenants and agrees as
follow
0.01 Grantor's Warranty
Grantor warrants and represents to the Grantee that Grantor is the
owner of the Property described in Schedule A, free of any mortgages or
liens, except as set forth in Stewart Title Insurance Company Title Report
#71239749, and possesses the right to grant this easement.
2
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal corporation organized and existing under the laws of the State of
New York State and is authorized under §64 of Town Law and §247 of the
New York State General Municipal Law ("General Municipal Law") to acquire
fee title or lesser interests in land, including development rights, easements,
covenants, and other contractual rights which may be necessary or desirable
for the preservation and retention of agricultural lands, open spaces and
natural or scenic resources.
0.03 Purpose
The parties recognize the value of the Property resulting from its
agricultural use and further recognize the common purpose of preserving
this value by limiting the uses of the Property. This instrument is intended
to convey a Development Rights Easement on the Property by Grantor to
Grantee, exclusively for the purpose of preserving its character in perpetuity
for its agricultural values, by preventing the use or development of the
Property for any purpose or in any manner contrary to the provisions hereof,
in furtherance of federal, New York State and local conservation policies.
0.04 Governmental Recognition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law §247.
Similar recognition by the federal government includes §170(h) of the
Internal Revenue Code ("IRC") and other federal statutes.
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. In order to aid in identifying and documenting
the present condition of the Property's agricultural and other resources and
to otherwise aid in identifying and documenting such values as of the date
hereof, to assist Grantor and Grantee with monitoring the uses and activities
on the Property and ensuring compliance with the terms hereof, Grantee has
prepared, with Grantor's cooperation, an inventory of the Property's relevant
features and conditions (the "Baseline Documentation"). This Baseline
Documentation includes, but need not be limited to, a survey prepared by
John Minto, L.S., dated January 30, 2023, and a Phase 1 Environmental Site
Assessment dated February 21, 2023 by Nelson, Pope & Voorhis, LLC.
3
Grantor and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the Grantor's
uses of the Property or its physical condition as of the date hereof, the
parties shall not be foreclosed from utilizing any other relevant or material
documents, surveys, reports, photographs or other evidence to assist in the
resolution of the controversy.
0.05 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights
Easement, the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall include
any and all of those limitations, covenants, use restrictions, rights, terms
and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and
right to restrict the use of the Property to uses or purposes consistent with
the terms of this Easement, including agricultural production as that term is
presently referenced in §247 of the General Municipal Law and defined in
Chapter 70 of the Town Code of the Town of Southold (the "Town Code" or
"Code") now, or as they may be amended, and including the production of
crops, livestock and livestock products as defined in §301(2) of the New
York State Agriculture and Markets Law ("Agriculture and Markets Law"),
now, or as said §301(2) may be amended. No future restrictions in said
laws or limitations in the definitions set forth in said laws shall preclude a
use that is permitted under the current law as of the date of this Easement.
"Improvement" shall mean any addition to raw land, such as
structures, fences, wells or drainage.
4
"Lawn" shall mean an area of land on which grasses or other durable
plants are grown and maintained at a short height and principally used for
aesthetic or other non-agricultural purposes. Land that is in agricultural
production, including sod farming, or land in a fallow or otherwise idled
manner, is not "Lawn."
"Riding Academy" shall mean a business use of a lot for any of the
following purposes: the letting of horses for hire to individuals or groups
whether supervised or unsupervised, horseback riding instruction or the
holding of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or under
the ground or upon another structure or building, including walkways.
Structures shall not include trellis, posts and wiring, farm irrigation systems,
nursery mats, temporary animal shelters or fencing necessary for
agricultural operations or to mark the boundaries of the Property, including
without limitation fencing to keep out predator animals, including deer.
Approvals for those items listed in the preceding sentence shall be as
required by applicable provisions of the Town Code.
1.03 Duration
This Easement shall be a burden upon and run with the Property in
perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal interest in
the Property, and shall extend to and be binding upon Grantor, Grantor's
agents, tenants, occupants, heirs, personal representatives, successors and
assigns, and all other individuals and entities and provides Grantee with the
right to administer, manage and enforce the Easement as provided herein.
The word "Grantor" when used herein shall include all of those persons or
entities. Any rights, obligations, and interests herein granted to Grantor
and/or Grantee shall also be deemed granted to each and every one of its
subsequent agents, successors, and assigns, and the word "Grantor and/or
Grantee" when used herein shall include all of those persons or entities.
5
ARTICLE TWO
SALE
GRANTOR, for TWO MILLION SIXTY TWO THOUSAND FOUR HUNDRED
DOLLARS AND 00/100 ($2,062,400.00) and such other good and valuable
consideration, hereby grants, releases, and conveys to Grantee this
Easement, in perpetuity, together with all rights to enforce it. Grantee
hereby accepts this Easement in perpetuity, and undertakes to enforce it
against Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as
after review by the Southold Town Land Preservation Committee ("Land
Preservation Committee") for consistency with the Purpose and other terms
of this Easement, and as permitted under other applicable provisions of the
Town Code and Sections 1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials; Mining
The excavating, regrading, scraping or filling of the Property shall be
prohibited, without the prior written consent of Grantee, including but not
limited to review by the Land Preservation Committee.
Mineral exploitation, and extraction of any mineral, including but not
limited to soil, gravel, sand and hydrocarbons, by any method, surface or
subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the Property is
prohibited, nor shall the topography of the Property be changed, except in
connection with normal agricultural/horticultural activities, all of which shall
require the prior written consent of Grantee, including but not limited to
from the Land Preservation Committee.
6
3.03 Subdivision
Except as provided in this Section 3.03, the Property may not be
further subdivided pursuant to Town Law §§265, 276 or 277 or §335 of the
Real Property Law, as they may be amended, or any other applicable State
or local law. "Subdivision" shall include the division of the portion of the
Property from which the development rights are acquired into two or more
parcels, in whole or in part.
Grantor may, subject to approval by the Planning Board of the Town of
Southold and as otherwise required by applicable law, modify or alter lot
lines between the Property and adjacent parcels, or subdivide the Property,
provided that all resulting parcels contain at least 10 acres of preserved
agricultural land subject to a development rights easement or other
conservation instrument.
Notwithstanding this Section 3.03, upon the death of Grantor or its
Members, the underlying fee interest may be divided by conveyance of parts
thereof to Grantor's executor, trustee, heirs or next of kin by will or
operation of law.
3.04 Dumping
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or chemical
waste on the Property shall be prohibited. This prohibition shall exclude
materials used in the normal course of sound agricultural practices on the
Property, including fertilization, composting and crop removal.
3.05 Signs
The display of signs, billboards, or advertisements shall be prohibited,
except signs whose placement, number, and design do not significantly
diminish the scenic character of the Property and only for any of the
following purposes: (a) to state the name of the Property and the names
and addresses of the occupants and the character of the business conducted
thereon, (b) to temporarily advertise the Property or any portion thereof for
sale or rent, (c) to post the Property to control unauthorized entry or use, or
(d) with the consent of the Grantor, to announce Grantee's easement. Signs
are subject to regulatory requirements of the Town.
7
3.06 Utilities
The creation or placement of overhead utility transmission lines, utility
poles, wires, pipes, wells or drainage systems ("utilities") on the Property to
service structures approved pursuant to §4.06 shall be prohibited without
the prior written consent of the Grantee. Underground utilities must, to the
extent possible, be constructed within 30 feet of the centerline of any roads
or driveways, and may be used to service the permitted structures on the
Property, and on adjacent properties subject to a development rights
easement or other conservation instrument. Existing underground irrigation
systems may be repaired or replaced without the consent of or review by the
Grantee.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial
uses, permanent or temporary, including but not limited to a riding
academy, shall be prohibited. For the purposes of this section, agricultural
production, as that term is presently referenced in §247 of the General
Municipal Law and defined in Chapter 70 of the Town Code, now, or as they
may be amended, and including the production of crops, livestock and
livestock products as defined in §301(2) of the Agriculture and Markets Law,
now or as said §301(2) may be amended, shall not be considered a
commercial use.
Uses, improvements and activities permitted by the Town Code now or
in the future on agricultural lands protected by a development rights
easement or other instrument, including but not limited to farmstands, shall
not be considered a commercial use. No improvements, uses or activities
inconsistent with current or future agricultural production shall be permitted
on the Property. Under no circumstances shall athletic fields, golf courses or
ranges, commercial airstrips and helicopter pads, motorcross biking, or any
other improvements or activity inconsistent with current or future
agricultural production be permitted on the Property.
Grantor shall not establish or maintain a Lawn on the Property.
Hunting is permitted on the Property provided it does not interfere
with agricultural production and is conducted in accordance with sound
agricultural management practices.
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3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited.
This prohibition shall not be construed as extending to agricultural
operations and practices (including, without limitation, the use of
agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that
are in accordance with sound agricultural management practices of the
Natural Resources Conservation Service ("NRCS").
3.09 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural management
practices and in order to control flooding or soil erosion on the Property or
onto adjoining properties.
3.10 Lot Yield; Future Development
Except as provided herein, the use of the acreage of this Property for
purposes of calculating lot yield on any other Property shall be prohibited.
Grantor hereby relinquishes to Grantee all existing rights to develop the
Property (and any such further rights that may be created through a
rezoning of the Property) except for the right to construct, maintain, alter
and replace any pre-existing structures, and to construct new structures, as
such rights may be provided in Section 4.06 or elsewhere in this Easement,
and the parties agree that any other such rights shall be terminated and
extinguished and may not be used or transferred to any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all
other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
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4.02 Possession
Grantor shall continue to have the right to exclusive possession of the
Property.
4.03 Use
Grantor shall have the right to use the Property in any manner and for
any purpose consistent with and not prohibited by this Easement, as well as
applicable local, State, or federal law. Grantor shall have the right to use
the Property for uses, improvements and activities permitted by the Town
Code, now or in the future, on agricultural lands protected by a development
rights easement or other instrument, including, but not limited to
farmstands and for educational or training programs related to agricultural
production or activities.
Grantor shall also have the right to use the Property for traditional
private recreational uses, provided such recreational uses are conducted for
the personal enjoyment of Grantor, are compatible with farming, and are
otherwise consistent with and do not derogate from or defeat the Purpose of
this Easement or other applicable law. These uses shall not be offered or
provided for commercial purposes, including the commercial gain of Grantor
or others. Hunting to remove predators which harm agriculture production
shall not be deemed a recreational use or a use for commercial purposes.
4.04 Landscaping Activities
Grantor shall have the right to continue the current and/or customary
modes of landscaping, pruning and grounds maintenance on the Property as
evidenced by the documentation set forth in Section 0.05. Grantor shall
have the right to remove or restore trees, shrubs, or other vegetation when
deemed to be invasive, dead, diseased, decayed or damaged or interfering
with agricultural production or other permitted uses of the Property,
including activities permitted in Section 4.06, to thin and prune trees to
maintain or improve the appearance of the Property or to benefit permitted
structures and improvements, and to mow the property. Notwithstanding
the above, Grantor is prohibited from establishing or maintaining a Lawn on
the Property, as set forth in 3.07.
4.05 Agricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is presently referenced in §247 of the General
10
Municipal Law and defined in Chapter 70 of the Town Code, now, or as they
may be amended, and including the production of crops, livestock and
livestock products as defined in §301(2) of the Agriculture and Markets Law,
now, or as said §301(2) may be amended. No future restriction in said laws
or limitations in the definitions set forth in said laws shall preclude a use that
is permitted under the current law as of the date of this Easement.
Grantor may offer "U-Pick" operations and/or the use of a corn maze
to the general public, provided that such activities are conducted in
conjunction with seasonal harvests, do not interfere with agricultural
production and are otherwise consistent with and do not derogate from or
defeat the Purpose of this Easement or other applicable laws.
Notwithstanding the definition of agricultural production in Chapter 70
of the Town Code or any successor chapter, structures shall be prohibited
except as set forth in Section 4.06 herein and as permitted by the Town
Code now or in the future on agricultural lands protected by a development
rights easement or other instrument, including but not limited to
farmstands.
4.06 Structures
A. Allowable Improvements. Grantor shall have the right to erect,
alter and maintain the following improvements on the Property, as may be
permitted by the Town Code and subject to review by the Town of Southold
Land Preservation Committee, provided the improvements are consistent
with and do not derogate from or defeat the Purpose of this Easement or
other applicable laws:
(i) Underground facilities used to supply utilities solely for
the use and enjoyment of the Property, or on adjoining
lands subject to a development rights easement or
other conservation instrument;
(ii) New construction, including drainage
improvement structures, provided such structures are
related to or accessory to agricultural production; .
(iii) Renovation, maintenance, alteration, expansion and
repairs of any existing structures or structures built or
permitted pursuant to this Section 4.06, provided the
purpose of the structure remains agricultural;
11
(iv) Additional types of structures, improvements or uses
consistent with the purposes of this Easement which
arise from future developments in agricultural
production or scientific, mechanical or technological
advances in agricultural production.
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricultural production, and otherwise be consistent with
the Purpose of this Easement.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent with
the purposes intended herein, and construction of any such improvement
shall minimize disturbances to the environment. Grantor shall employ
erosion and sediment control measures to mitigate any storm water runoff,
including but not limited to minimal removal of vegetation, minimal
movement of earth and minimal clearance of access routes for construction
vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair of any existing
improvements or improvements built or permitted pursuant to this Section
4.06 impractical, erection of a structure of comparable size, use, and general
design to the damaged structure shall be permitted in kind and within the
same general location, subject to the review and written approval of
Grantee, pursuant to applicable provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction of any
permanent or temporary structures as permitted in Section 4.06 herein and
shall file all necessary applications and obtain all necessary approvals that
may be required by this Easement or by the Town Code, and shall provide
documentation as may be required for such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of its
remaining interest in the Property, but only subject to this Easement.
Grantor shall promptly notify Grantee of any conveyance of any interest in
the Property, including the full name and mailing address of any transferee,
and the individual principals thereof, under any such conveyance. The
instrument of any such conveyance shall specifically set forth that the
12
interest thereby conveyed is subject to this Easement, without modification
or amendment of the terms of this Easement, and shall incorporate this
Easement by reference, specifically setting for the date, office, liber and
page of the recording hereof. The failure of any such instrument to comply
with the provisions hereof shall not affect Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from
further restricting the use, improvements or structures on the Property. Any
such further restrictions shall be consistent with and in furtherance of the
general intent and purpose of this Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and
other governmental or municipal charges, which may become a lien on the
Property, including any taxes or levies imposed to make.those payments,
subject, however, to Grantor's right to grieve or contest such assessment.
The failure of Grantor to pay all such taxes, levies and assessments and
other governmental or municipal charges shall not cause an alienation of any
rights or interests acquired herein by Grantee.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount, arising from injury due to the physical
maintenance or condition of the Property caused by Grantor's actions or
inactions, provided same arises when Grantee or its agents is lawfully on the
Property, or from any taxes, levies or assessments upon it or resulting from
this Easement, all of which shall be considered Grantor's obligations.
5.03 Third Party Claims
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, or expenses, charges or liens to Grantee
or any of its officers, employees, agents or independent contractors, all of
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which shall be reasonable in amount, resulting: (a) from injury to persons or
damages to property arising from any activity on the Property; and (b) from
actions or claims of any nature by third parties arising out of the entering
into or exercise of rights under this Easement, excepting any of those
matters arising solely from the acts of Grantee, its officers, employees,
agents, or independent contractors, or those matters arising when such
persons are not lawfully on the property. Grantor as used in Section 5.02
and 5.03 shall refer only to the owner of the Premises at the time the injury,
damage, action or claim arose.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantor, and in a manner that will not interfere
with Grantor's quiet use and enjoyment of the Property, for the purpose of
inspection to determine whether this Easement and its purposes and
provisions are being upheld. Grantee shall not have the right to enter upon
the Property for any other purposes, except as provided in Section 6.02 and
6.03, or to permit access upon the Property by the public.
Notwithstanding the above, Grantee's use of drones shall be limited to
purposes of Enforcement of this Easement and to inspection under this
Easement when traditional means are not available, and shall occur only
with prior notice to Grantor and consent for same, which consent shall not
be unreasonably withheld.
6.02 Restoration
Grantee shall have the right to require the Grantor to restore the
Property to the condition required by this Easement and to enforce this right
by any action or proceeding that Grantee may reasonably deem necessary.
However, Grantor shall not be liable for any changes to the Property
resulting from causes beyond the Grantor's control, including, without
limitation, fire, flood, storm, earth movement, wind, weather or from any
prudent action taken by the Grantor under emergency conditions to prevent,
abate, or mitigate significant injury to persons or to the Property or crops,
livestock or livestock products resulting from such causes.
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6.03 Enforcement Rights of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for
any violation of this Easement may be inadequate. Therefore, in addition to,
and not as a limitation of, any other rights of Grantee hereunder at law or in
equity, in the event any breach, default or violation of any term, provision,
covenant or obligation on Grantor's part to be observed or performed
pursuant to this Easement is not cured by Grantor within thirty (30) days'
notice thereof by Grantee or such longer period as is reasonable during
which time Grantor is curing or attempting to cure such breach, default or
violation, taking into account extreme weather conditions or catastrophic
events (which such time period for notice is expressly waived by Grantor
with respect to any such breach, default or violation which, in Grantee's
reasonable judgment, requires immediate action to preserve and protect any
of the agricultural values or otherwise to further the purposes of this
Easement), Grantee shall have the right at Grantor's sole cost and expense
and at Grantee's election, taking into account extreme weather conditions or
other emergency conditions or other emergency or catastrophic events:
(i) To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(ii) To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to
cause the restoration of that portion of the Property affected by
such breach, default or violation to the condition that existed
prior thereto, or
(iii) To enforce any term provision, covenant or obligation in this
Easement or to seek or enforce such other legal and/or equitable
relief or remedies as Grantee reasonably deems necessary or
desirable to ensure compliance with the terms, conditions,
covenants, obligations and purposes of this Easement; provided,
however, that any failure, delay or election to so act by Grantee
shall not be deemed to be a waiver or a forfeiture of any right or
available remedy on Grantee's parr with respect to such breach,
default, or violation or with respect to any other breach, default
or violation of any term, condition, covenant or obligation under
this Easement.
Grantor shall pay either directly or by reimbursement to Grantee, all
reasonable attorneys' fees, court costs and other expenses incurred by
Grantee (herein called "Legal Expenses") in connection with any proceedings
under this Section, as approved by the Court.
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The cure period in this Section 6.03 may be extended for a reasonable
time by Grantee if such restoration cannot reasonably be accomplished
within thirty (30) days.
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered electronically and by first class mail, or by hand or by certified
mail, return receipt requested, with sufficient prepaid postage affixed and
with return receipts requested, or by nationally recognized overnight courier
(USPS, Federal Express, etc.). Mailed notice to Grantor shall be addressed
to Grantor's address as recited herein, or to such other address as Grantor
may designate by notice in accordance with this Section 6.04. Mailed notice
to Grantee shall be addressed to its principal office recited herein, marked to
the attention of the Supervisor and the Town Attorney, or to such other
address as Grantee may designate by notice in accordance with this Section
6.04. Notice shall be deemed given and received as of the date of its
manual delivery or three business days after the date of its mailing.
A copy shall also be sent to: taxcertes o timum.net for the Grantor and
to the Town Attorney and the Land Preservation Coordinator and/or
Department for the Grantee, or such other address provided to the other
party by notice set forth above.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE SIX
shall not have the effect of waiving or limiting any other remedy or relief,
and the failure to exercise or the delay in exercising any remedy shall not
constitute a waiver of any other remedy or relief or the use of such other
remedy or relief at any other time.
6.06 Extinguishment of Easement/Co ndem nation
At the mutual request of Grantor and Grantee, a court with jurisdiction
may, if it determines that conditions surrounding the Property have changed
so much that it becomes impossible to fulfill the Purpose of this Easement
described in Section 0.03, extinguish or modify this Easement in accordance
with applicable law. The mere cessation of farming on the Property shall not
be construed to be grounds for extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, by the Grantee or by any other
governmental entity, then this Easement shall terminate with respect to the
Property, or portions thereof so taken or condemned, and the Property shall
16
not be subject to the limitations and restrictions of this Easement. In such
event, the Grantor, its successors or assigns, shall not be required to pay
any penalties, but the value of the Property shall reflect the limitations of
this Easement. Any condemnation award payable to the Grantor shall be in
proportion to the value attributable to the residual agricultural value of the
Property. If the condemnation is undertaken by an entity other than the
Grantee, then the remaining portion of the condemnation award shall be
payable to the Grantee in proportion to the value attributable to the
development rights transferred hereby.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
superseded by it.
7.O2 Amendment
This Easement may be amended only with the written consent of
Grantee and current owner of the Property and in accordance with any
applicable State and local laws. Any such amendment shall be consistent
with the Purpose of this Easement and shall comply with the Town Code and
any regulations promulgated hereunder, and shall be duly recorded.
This Easement is made with the intention that it shall qualify as a
Conservation Easement in perpetuity under Internal Revenue Code §170(h).
The parties agree to amend the provisions of this Easement if such
amendment shall be necessary, to entitle Grantor to meet the requirements
of §170(h). Any such amendment shall apply retroactively in the same
manner as if such amendment or amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code or any
successor chapter and other applicable laws, upon the adoption of a local law
authorizing the alienation of said rights and interest, following a public
hearing and, thereafter, ratified by a mandatory referendum by the electors
17
of the Town of Southold. No subsequent amendment of the provisions of the
Town Code shall alter the limitations placed upon the alienation of those
property rights or interests which were acquired by the Town prior to any
such amendment.
In addition to the limitations set forth above, Grantee shall have the
right to transfer all or part of this Easement to any public agency, or private
non-governmental organization, that at the time of transfer is a "qualified
organization" under §170(h) of the internal Revenue Code, provided that
transferee expressly agrees to assume the responsibility imposed on the
Grantee by this Easement, whereupon all references to Grantee shall be to
such entity.
Any easement transfer must be approved by the Grantor or any
subsequent owner. If the Grantee ever ceases to exist, a court of competent
jurisdiction may transfer this Easement to another qualified public agency
that agrees to assume the responsibilities imposed by this Easement.
7.04 Severability
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court shall not be invalidated.
Instead, that provision shall be reduced or limited to whatever extent that
court determines will make it enforceable and effective. Any other provision
of this Easement that is determined to be invalid or unenforceable by a court
shall be severed from the other provisions, which shall remain enforceable
and effective.
7.05 Governing Law
New York law applicable to deeds to and easements on land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
7.06 Interpretation.
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was
drafted by the other party's attorney. No alleged ambiguity in this Easement
shall be construed against the party whose attorney drafted it. If any
provision of this Easement is ambiguous or shall be subject to two or more
interpretations, one of which would render that provision invalid, then that
provision shall be given such interpretation as would render it valid and be
consistent with the purposes of this Easement. Any rule of strict construction
18
designed to limit the breadth of the restrictions on use of the Property shall
not apply in the construction or interpretation of this Easement, and this
Easement shall be interpreted broadly to effect the purposes of this
Easement as intended by the parties. The parties intend that this Easement,
which is by nature and character primarily negative in that Grantor has
restricted and limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate its
purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted
to grant, to the public, any right to enter upon the Property, or to use
images of the Property. Grantee may use images of the Property only for
non-commercial reporting of this Easement.
7.08 Reservation of a Future Trail Easement. Notwithstanding the
provisions contained in this Agreement, Grantors, their successors and
assigns, at Grantors' sole discretion, may, in the future, grant additional
interests and property rights to the Grantee for the purposes of establishing
a pedestrian "Trail Easement" that is open and available for use by the
general public over a portion of the Subject Area without the need for
amendment or modification to this Agreement. Said future Trail Easement
shall not be considered an alienation of interest or rights in real property
acquired herein by the Grantee. Said future Trail Easement shall be subject
to the terms mutually agreeable to the Grantors and the Grantee, but shall
as a minimum include the following terms:
A. The Trail Easement that shall not exceed twenty {20'} feet in
width and shall be designated and shown on a survey prepared by a licensed
surveyor and at Grantee's expense. The future Trail Easement shall be
located on a portion of the Subject Property mutually agreed upon by the
Grantors and Grantee so that its use will not unreasonably interfere with the
agricultural use of the Subject Property.
B. Grantee shall have the right to create and construct a
footpath/trail within the future Trail Easement in accordance with the
standards and specifications of the Town of Southold
C. The creation and construction of a footpath/trail within the future
Trail Easement shall be contingent upon the actual establishment and
linkage with other nearby and contiguous trails.
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D. Grantee's rights and liabilities to use, operate and maintain a
footpath/trail within the future Trail Easement shall not become effective
unless and until the footpath/trail is actually physically constructed as
provided herein and the Town Board of the Town of Southold, duly
acknowledges and accepts said pedestrian trail as part of the Town's trails
system and map.
E. The future Trail Easement shall not be utilized for any purposes
other than providing a travel route for the general public for pedestrian
activities and trail related activities, such as hiking, subject to the limitations
of use, as may be determined by the Town Board and agreed to by the
Grantor.. Access by the general public in or on motorized vehicles is
expressly prohibited and no streets, roadways or other rights-of-way or
easements for vehicular use shall be constructed or granted therein.
F. Access by the general public to the future Trail Easement shall
be only to and from contiguous greenbelt trails, public thoroughfares or
other such officially designated access points. Access to and upon adjacent
private lands shall be expressly prohibited. Nothing in the future Trail
Easement shall grant the general public the right to park vehicles on the
adjoining private property or roads.
Nothing herein shall require Grantor to grant a Trail Easement, nor shall this
Reservation create any restriction on the Property or the consideration
therefor, this provision being intended only to all such an easement grant
and to confirm that such grant shall not be deemed an alienation of
Development Rights granted by the Development Rights Easement.
7.09 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.10 Recording
Grantee shall record this Easement in the land records of the office of
the Clerk of the County of Suffolk, State of New York.
7.11 Headings
The headings, titles and subtitles herein have been inserted solely for
convenient reference, and shall be ignored in its construction.
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7.12 Sale of Property and- Assignment of Development Rights Purchase and
Sale Agreement
In the event that the subject property is sold and the Development
Rights Purchase and Sale Agreement is assigned to the purchaser, then all
references to Grantor herein shall mean Purchaser/Assignee and Grantor
shall have no further rights or obligations pursuant to said Development
Rights Purchase and Sale Agreement or the provisions of this Easement.
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee
has accepted and received this Grand of Development Rights Easement on
the day and year set forth above.
INTENTIONALLY LEFT BLANK
21
By:
GE iZ Fl/v/,K � P I��SIa EAl r
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
BY
Scott A. Russell, Supervisor
r
21
STATE OF NEW YORK)
COUNTY OF K), SS.•
On the !2 O`day of--n� in the year 2023 before me, the undersigned,
personally appeared &4�o" F6W,personally known to me or proved to me on the
basis ofsatisfactory evidence to be the individual(s) whose name(s)is(are)subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(les), and that by his/her/their signature(s)on the instrument, the
individual(s), or the person upon behalf of which the individuals)acted, executed the
instrument.
-- - - CLI'421- 414-
Signatur%ffice of individual taking acknowledgement
[NotaCHRISTINA A SESSA
Public,State of NOWYork
No.02SE6011444
ualftled in Nassau County
ry
mmission Expires November 21,201
STATE OF NEW YORK )
COUNTY OFSUFFOLK ) SS:
On this.-LI'd'ay of JV)V in the year 2023 before me, the undersigned,
personally appeared Scott A. Russell, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose names) is (are)subscribed
to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity(les), and that by his/her/their signatures) on the instrument,
the individual(s), or the person upon behalf of which the individuals)acted, executed
the instrument.
ignatur%ice bfindividual taking acknowledgement
JEANNE D GIARRATANO
NOTARY PUBLIC,STATE OF NEW YORK
Registration No.01GI6094250 DZ�
Qualified in Suffolk County
Commission Expires June 16,
22